The Forging of Judicial Autonomy: Political
Entrepreneurship and the Reforms of William
Howard Taft
Justin Crowe
Princeton University
In his first four years as Chief Justice of the United States, William Howard Taft convinced Congress to pass two
reform bills that substantially enhanced the power of the federal courts, the Supreme Court, and the Chief Justice. In
this article, I explore the causes and the consequences of those reforms. I detail how Taft’s political entrepreneurship—
specifically the building of reputations, the cultivation of networks, and the pursuit of change through measured
action—was instrumental in forging judicial autonomy and, subsequently, how that autonomy was employed to
introduce judicial bureaucracy. By asking both how judicial reform was accomplished and what judicial reform
accomplished, I offer an analytically grounded and historically rich account of the politics surrounding two of the
most substantively important legislative actions relating to the federal judiciary in American history. In the process,
I also draw attention to a largely neglected story of political development: the politics surrounding the building of the
federal judiciary as an independent and autonomous institution of governance in American politics.
“The spirit of speed and efficiency lurking in the corpulent
form of an ex-President of the United States has entered the
Court and broken up its old lethargy.”
—Herbert Little in The American Mercury (1928)
W
hen, after an extensive career in politics,
William Howard Taft finally achieved his
lifelong goal and was appointed Chief
Justice of the United States in 1921, the judiciary was,
in Taft’s own words, “likely to be swamped, and delay
of justice” was “inevitable” (Taft 1922b, 34). The
courts, highly decentralized and still using cumbersome procedures like automatic appeals to the
Supreme Court, were lagging behind the pace of
change across the rest of America. When, after a relatively short tenure on the bench, Taft resigned from
the Court in 1930, the federal courts, the Supreme
Court, and the Chief Justice were each significantly
more independent, more autonomous, and more
powerful than they had previously been. Thus, it does
not seem an exaggeration to say that, in only nine years
on the Court, Taft had surpassed even his own wish of
“reasonable betterment by practical means” (Taft
1916–17, 10).
Judicial reform arrived in two installments.1 The
first came in 1922, when, at the suggestion and urging
of Taft, Congress provided 24 additional district court
judges; granted the Chief Justice authority to transfer
judges from overstaffed districts in one circuit to
understaffed districts in other circuits2; and established the “Conference of Senior Circuit Judges” (later
known as the Judicial Conference), an annual meeting
of the nation’s top judges that, under the direction of
the Chief Justice, would survey the state of judicial
affairs and make proposals to Congress (42 Stat. 837).
The second came three years later, when, again at the
suggestion of Taft but this time at the urging of both
1
Taft’s reform platform actually consisted of three proposals, but, since the third leg—authorization for the Supreme Court to promulgate
a set of uniform instructions governing judicial proceedings in courts across the nation (48 Stat. 1064)—did not gain congressional
approval until 1934 (four years after Taft had left the Court and passed away) and was not actually accomplished until the “Federal Rules
of Civil Procedure” became effective in 1938, I focus only on the first two legs here.
2
Such authority, which was contingent upon the approval of the senior circuit judges from both circuits involved in the transfer,
complemented another power conferred by the 1922 act: the ability of senior circuit judges to transfer judges between districts within a
given circuit.
The Journal of Politics, Vol. 69, No. 1, February 2007, pp. 73–87
© 2007 Southern Political Science Association
ISSN 0022-3816
73
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Taft and his Court brethren, Congress passed the Judiciary Act of 1925,3 which drastically redefined the role
of the Supreme Court by converting much of its
obligatory jurisdiction into certiorari (or discretionary) jurisdiction (43 Stat. 936). The former established
the Chief Justice as the “head” of the entire judicial
branch and imposed greater structural hierarchy
within the court system; the latter unburdened the
Court and allowed it to return to its “higher
function”—interpreting the Constitution.4 With these
two reform thrusts, Taft sparked a “double revolution”
(Starr 1991–92, 965): he not only accomplished what
a decade earlier would have seemed an
impossibility—he had laid the groundwork for the
federal judiciary in general, and the Supreme Court in
particular, to become a powerful institution of American governance—but also accomplished it in a
manner that had theretofore been unseen—with
active judicial intervention in the legislative process.
In this article, I seek to determine both the causes
and consequences of Taft’s judicial reforms.5 In doing
so, I ask two key questions about the politics of institutional development during the 1920s. First, how,
despite both the “fury” surrounding the Court at the
time (Ross 1994) and the potential for “a durable shift
in governing authority” (Orren and Skowronek 2004,
123) inherent in Taft’s reform proposals, was judicial
reform accomplished? Second, what, in terms of concrete and enduring changes for the exercise of judicial
power in American politics, did judicial reform
accomplish?
In answering these questions, I proceed as follows.
First, I outline two existing explanations of judicial
reform and, finding that these approaches fail to
capture the character of the Taft reforms accurately,
summarize an alternative paradigm—Daniel P. Carpenter’s theory of “bureaucratic autonomy” (2001).
Second, transferring Carpenter’s conceptual frame
from agencies to courts, I explain the passage of the
landmark judicial reforms of the 1920s as the result of
Taft’s construction, or “forging,” of judicial autonomy.
In particular, I emphasize the importance of three features of Carpenter’s exposition of the more widely
used concept of “political entrepreneurship” (Shein3
The statute is also known as the “Judges’ Bill” because judges—
Supreme Court justices, in fact—authored and testified in favor
of it.
4
Though, in practice, only a relatively small percentage of the
Court’s work involves constitutional interpretation.
5
I draw here on a number of previous accounts of Taft’s actions as
Chief Justice (Buchman 2003; Fish 1975; Hartnett 2000; Mason
1984; Murphy 1961; Murphy 1962a; Post 1998b).
justin crowe
gate 2003)—the building of organizational reputations, the cultivation of multiple networks, and the
pursuit of change through measured action—in constructing political legitimacy for the federal judiciary.
Third, I examine how Taft’s reforms transformed the
judiciary by introducing “executive principle” and
other trappings of modern bureaucracy. Finally, I offer
some concluding thoughts about how we might use
the Taft example as a window into a broader, but as yet
unexplored, subject: the process of “building” the judiciary as an independent and autonomous institution
of governance in America.
Acknowledging the fact that the judiciary, no less
than Congress or the president, is one of American
government’s “separated institutions sharing powers”
(Neustadt 1990, 29), my focus on the development of
judicial capacity fits within the recent historicalinstitutionalist movement toward understanding judicial authority—and, in particular, the power of
judicial review—as a politically constructed feature of
American politics (Gillman 2002; Graber 1993; Whittington 2005).6 However, reaching beyond judicial
review (and beyond deciding cases entirely) to the
variety of other ways in which—the variety of other
functions through which—courts and judges exercise
power, my concern is less with how judges rule7 than
with the conditions that make it possible for judges to
rule. That is to say, recognizing that judicial institutions are built of far more varied and complicated
components than simply the written opinions of
judges, I am interested in the politics surrounding the
development of those components—the politics of
altering the institutional environment of courts and
judges through changes in, for example, jurisdiction,
organizational structure, or budgeting.
In sum, this article tells two stories (or, perhaps
more accurately, two sides of the same story): how
political entrepreneurship was exercised in forging
judicial autonomy and, to a lesser extent, how that
autonomy was employed to introduce judicial bureaucracy.8 The former is the story of an entrepreneur
6
There is also a large body of formal-quantitative literature concerned with similar themes both in the United States (de
Figueiredo and Tiller 1996; Segal 1997) and abroad (Helmke 2002;
Ramseyer and Rasmusen 1997).
7
This is the central focus of recent comparative inquiries into
phenomena such as “juristocracy,” “judicialization,” and “constitutionalization” (Hirschl 2004; Shapiro and Stone Sweet 2002; Tate
and Vallinder 1995).
8
This does not mean the judiciary was wholesale made into a
bureaucracy; rather, it simply means that familiar features of
bureaucracy were embedded within the judiciary. Given its variety
of distinctly un-bureaucratic institutional features—the fact that
the forging of judicial autonomy
framing the terms of political debate and guiding
innovation, the latter of an entrepreneur consolidating
his innovations into comprehensive and enduring
institutional change (Sheingate 2003, 188–89). The
combination of these two narratives results in a
detailed account of the causes and consequences of
two of the most substantively important legislative
actions relating to the federal courts in American history.9 In addition, by extending Carpenter’s framework to an institution for which it was not designed,
the article provides an opportunity not only to reconsider the concept of “autonomy”—whether there
might be variance within it, different actors capable of
producing it, or a greater range of resources that can
aid those actors in doing so—but also to assess its
strength and applicability as an explanation for the
historical development of American political institutions more generally.10
Theorizing Judicial Reform
Existing work offers two possible explanations for the
passage of Taft’s judicial reforms. The first explanation
emphasizes the alignment of preferences between the
judges gaining power and the elected officials authorizing the power grant (Buchman 2003; Gillman
2002). On this view, Congress authorized Taft’s
reforms because the prevailing congressional majority
agreed with the substantive jurisprudential commitments of the judiciary and realized that it too would
benefit from increased judicial power. Since a Republican majority endorsed a conservative ideology that
the Taft Court shared and would likely advance, it
sacrificed little by vesting greater discretion and
increased policymaking authority in the federal judiciary. For the most part, this approach embodies a
“Congress-centered” perspective (Cameron 2005).11
judges are not directly accountable for the content of their rulings,
not subject to democratic controls such as elections or reappointment, and not hired or fired at the will of a superior—it is virtually
impossible that the judiciary could ever fully become a bureaucracy in the Weberian sense. My focus, therefore, is on the ways in
which the judiciary acquired bureaucratic character.
9
Equally transformative episodes of institutional development
might include the creation of the Interstate Commerce Commission in 1887, the Cannon Revolt of 1910, or the establishment of
the Executive Office of the President in 1939.
10
In this way, I am quite consciously and explicitly engaged in the
enterprise of “theory-building.” That it is to say, I am concerned
with “noting complex relationships in one setting and then seeing
how far other settings can be understood in those same terms”
(Scheppele 2004, 391).
11
Frankfurter and Landis (1928) is a paradigmatic example.
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Regarding the judiciary as a “passive bystander” that is
“always acted upon and rarely much of an actor”
(Cameron 2005, 186), it focuses on the congressional
delegation of institutional authority to courts (Whittington and Carpenter 2003, 495–96). With Congress
in the foreground and the judiciary relegated to the
background, judicial reform is portrayed as an externally driven process.
The second explanation emphasizes the assertion
of judicial prerogative over law and courts through
formal decisions settling legal disputes.12 By this
account, judicial capabilities were augmented because
the Taft Court made decisions that directly increased
judicial power, decisions that were treated as binding
because judges were part of the “legal pantheon,”
where matters of law were expected to be decided. In
contrast to the “Congress-centered” perspective, this
approach might be considered “Court-centered”
(Cameron 2005).13 Under this view, judicial preemption effectively results in congressional abdication of
institutional authority for reform (Whittington and
Carpenter 2003, 496–97). The Court unilaterally
determines the contours and extent of judicial power,
with little or no interference from other political
actors. Here, the story unfolds internally with the
Court alone in the foreground and all other forces,
including Congress and the rest of the judicial branch,
in the background.
Under “Congress-centered” explanations, we
should expect substantial and independent congressional interest in judicial reform; under “Courtcentered” explanations, we should expect a landmark
judicial decision embodying or announcing significant change. In the Taft case, however, we see neither.
Congress, short of two functionalist responses to
increasing caseload pressure in the second decade of
the twentieth century (38 Stat. 790; 39 Stat. 726),14
seemed largely uninterested in any judicial reform, let
alone far-reaching institutional transformation.15 The
Court, meanwhile, issued no significant constitutional
12
One representation of this view is what Shapiro (1981, 1–64)
refers to as the “prototype” of courts. Of course, Shapiro does not
subscribe to such a view himself but, instead, develops it as a
caricature to be deconstructed.
13
McCloskey (2000) is a standard embodiment.
14
Taft (1916–1917, 14) viewed these earlier congressional responses
as unacceptable: “From time to time some remedial measure is
adopted, but only by piecemeal. Some steps have been taken but
nothing radical although the subject calls for broad measures.”
15
Taft himself observed that “[d]ependence upon action of Congress to effect reform . . . has not brought the best results” (1922a,
607), blamed Congress for not providing the judiciary “with
adequate machinery for the prompt and satisfactory dispatch of
76
or statutory decision concerning any issues involved in
the reforms. Rather, both Congress and the Court were
important but not unitary actors: congressional
approval was required for increased discretion, but
judicial influence was instrumental in convincing legislators to acquiesce (Whittington and Carpenter
2003, 497). Moreover, although existing Congresscentered and Court-centered approaches offer explanations for how and why we get judicial reform at all,
neither can explain why we get it when we do or why
we get it in the form we do. At least in the Taft case,
neither can explain the timing or shape of the reforms
that ultimately result (Carpenter 2001, 35).
In order to understand how and why landmark
judicial reform occurred in the 1920s, we need to
move beyond simplistic explanations like “preference
alignment” and “judicial assertion.” Attempting to
do precisely that, I draw on Carpenter’s notion of
“bureaucratic autonomy,” said to occur “when
bureaucrats take action consistent with their own
wishes, actions to which politicians and organized
interests defer even though they would prefer that
other actions (or no action at all) be taken” (2001, 4).
For a bureaucratic agency to gain autonomy, it must
satisfy three conditions (Carpenter 2001, 15). First, it
must be politically differentiated—it must have
“preferences, interests, and ideologies” distinct from
those who seek to control it. Second, it must develop
“unique organizational capacities—capacities to
analyze, to create new programs, to solve problems,
to plan, to administer programs with efficiency, and
to ward off corruption.” Third, it must possess political legitimacy, developed through strong organizational reputations and grounded in multiple
networks.16 Each of these conditions arises through
“political entrepreneurship”—actions taken by “creative, resourceful, and opportunistic leaders whose
skillful manipulation of politics somehow results in
the creation of a new policy or bureaucratic agency,
creates a new institution, or transforms an existing
one” (Sheingate 2003, 188). Those leaders—entrepreneurs—serve a multitude of functions in Carpenter’s
narrative. Most prominently, they enable their agencies to develop reputations and cultivate networks,
but they also bring the authority to innovate; influence the media and public perception; “induce
business” (1921, 453), and chided legislators for “too much politics . . . and not enough sincere effort and efficiency” (1916–1917,
16) in judicial reform.
16
To be effective, reputations must be grounded in actual capacity;
similarly, networks must be rooted in multiple and diverse political
affiliations that cut across traditional cleavages such as party,
region, and class.
justin crowe
national politicians to consider (and in many cases
pass) laws that otherwise would never have been
entertained” (Carpenter 2001, 33–34); and, recognizing that their influence is not absolute, “act in measured ways” (Carpenter 2001, 15).
To be sure, entrepreneurs are not omnipotent.17
They cannot create change in any or all situations; they
do not act independently of or removed from historical circumstances. Taft, for instance, was simultaneously operating within two overlapping political
orders (Orren and Skowronek 2004): first, a Progressive era state-building climate that valued the very
aims of professional expertise, scientific administration, and managerial efficiency he once desired to
embed in the executive and now sought to entrench in
the judiciary (Arnold 1998, 3–51; Chandler 1977;
Skowronek 1982); and, second, a post-World War I
national mood of ambivalence toward centralization
that was both enthusiastic about the opportunities
offered by an expanded national government and
worried about the disintegration of local government
that might accompany such expansion (Post 2002).18
Yet, while entrepreneurs do not act in a vacuum,
neither do they sit idly by and wait for propitious
moments of structural convergence. Rather, they
engage in acts of “creative recombination” (Sheingate
2003, 198), actively creating or fostering the arrival of
such moments and then strategically reinterpreting
them if and when they do occur. That is to say, entrepreneurs are “engaged in a constant search for political
advantage,” a constant search for “speculative opportunities” (Sheingate 2003, 186)—overlays, cleavages,
and fissures, for example—that are pregnant with possibilities for change but require an act of leadership in
order for any to materialize. As a result, theories
involving entrepreneurship do not necessarily privilege agency over structure; rather, they combine the
two considerations in order to explain the processes of
political and institutional development.
Although used to explain “Congress and the
executive, state and local politics, policy innovation,
17
Cf. Orren and Skowronek (2004, 199–200): “At the level of
agency, the polity is filled with institutions, whose officers hold
historically derived mandates for action, and with persons affected
by the exercise of that authority, who may occasionally call it to
account. In this construction, political actors matter most as
agents, not causes. Their activities do not by themselves determine
the course of political development, but they reverberate with
greater or lesser effect throughout the whole to make political
development, durable shifts in authority, possible.”
18
Incidentally, this same mood is also reflected in the Taft Court’s
substantive due process and federalism jurisprudence (Post 1998a,
2002).
the forging of judicial autonomy
and collective action” (Sheingate 2003, 187–88), entrepreneurship has not yet been used as a prism for
understanding the judiciary. The reason is certainly
not one of applicability. Indeed, the forging of judicial
autonomy was not at all historically inevitable but,
rather, a gradual and continuous political process
spurred, shaped, and perpetuated by a cautious and
strategic political entrepreneur. It is that process—
of creation and construction, of contestation and
compromise—I attempt to recover here.
Forging Judicial Autonomy
To say that Taft was instrumental in the forging of
judicial autonomy is not to say that the judiciary of the
early twentieth century resembled the clerical bureaucracy of the antebellum period (Carpenter 2001,
37–64). To be sure, the judiciary Taft took over in 1921
was institutionally superior in at least a few key ways,
though perhaps institutionally inferior in others, to
the Post Office Anthony Comstock joined and the
Department of Agriculture Gifford Pinchot entered.
As a constitutionally specified branch of the federal
government, the judiciary was already autonomous in
certain ways. For instance, even amidst murmurings of
court-curbing, the independence of federal judges to
issue legal rulings without threats to their office, their
families, or their lives was well established. Thus,
unlike Comstock or Pinchot, Taft inherited a branch
that was, in no small part due to the freedom of
opinion afforded judges by life tenure, largely politically differentiated. In other words, despite owing their
nomination to a president and their confirmation to a
collection of senators, judges were not required to fall
in line with the preferences of either. Yet just as judges
were thought autonomous enough to make legal decisions,19 they were not, as indicated by the fact that the
judiciary’s budget was still controlled by the Attorney
General, thought sufficiently autonomous to make
administrative decisions. Despite recognition as the
“third branch,” the pre-1920 judiciary was neither
capable of planning and administering its own programs nor responsible for the regulation of its internal
affairs. Even within the context of Article III judicial
independence, therefore, there is room for more or less
(and different types of) autonomy, and the 1920s were
a critical juncture in moving the judiciary, and
19
Obviously, this type of autonomy had been building since the
tenure of John Marshall, if not before.
77
particularly the Court, into a new and higher realm of
that autonomy.
The challenges before Taft as he took the helm of
the Court, then, were to develop (or, at the very least,
refine) unique organizational capacity and to establish
political legitimacy for an institution that possessed
little of either. It was a pair of challenges he had long
recognized and to which he had devoted substantial
attention as a law professor, as a judge, and as president.20 By the time Taft adopted the cause of judicial
reform as Chief Justice, however, the Court—though
still firmly supported by pro-business and Old Guard
Republicans—had already made numerous enemies in
Congress from its invalidation of state and federal economic regulation (Ross 1994); over the course of Taft’s
nine years as Chief Justice, it would only make more.
Indeed, from 1922–24 alone, there were 11 separate
“court-curbing” proposals from angry Progressives
(Nagel 1965; Rosenberg 1992),21 including aggressive
attempts to rein in the Court by Senators Robert La
Follette (R-WI) and William Borah (R-ID) in 1922
and 1923, respectively.22 Yet even as Taft had congressional foes (especially in the Senate), he also had many
congressional friends (especially in the House), as well
as a series of three conservative Republicans (Warren
Harding, Calvin Coolidge, and Herbert Hoover) in the
White House. Moreover, with the judiciary struggling
to deal with the massive spike in litigation (New York
Times 1921a),23 Taft could point to real problems in
20
In addition to judicial reform and the creation of the Commerce
Court in 1910, Taft also championed executive reform, establishing
a “Commission on Economy and Efficiency,” during his time in the
White House (Arnold 1998, 26–51; Skowronek 1982, 263–267).
21
Four such Progressives—William Borah (R-ID), George Norris
(R-NE), Thomas Walsh (D-MT), and John Shields (D-TN)—were
among the fifteen members of the Senate Judiciary Committee.
Recognizing the problem, Taft led an uphill, behind-the-scenes
battle to reorganize the committee along more favorable ideological lines. His attempt was rebuffed, however, when Frank Kellogg
(R-MN), one of the two senators he favored for appointment
to the committee, was defeated for reelection in 1922 (Mason
1984, 95).
22
La Follette, who later advocated court-curbing during his thirdparty bid for the presidency in 1924, suggested a constitutional
amendment authorizing Congress to reenact federal statutes nullified by the Court; Borah promoted legislation requiring a sevenmember Court majority to declare an act of Congress
unconstitutional (Ross 1994, 191–232).
23
A function of, among other things, increased government regulation of the national economy; the growing federalization of
crime (narcotics, smuggling, auto-theft, and white-slave trafficking); the “mass of litigation growing out of the war” (Taft 1922b,
36); and, with the ratification of the Eighteenth Amendment
(Prohibition) and the passage of the Volstead Act, a multitude of
prosecutions against organized crime and alcohol distribution.
78
need of a solution.24 The result was that, when Taft
decided to reintroduce his judicial reform platform as
Chief Justice, the climate for such measures seemed to
hold promise as well as present pitfalls.
In explaining how, within this political environment, Taft induced Congress to acquiesce and provide
increased discretion and authority to the Chief Justice
specifically and the federal judiciary more generally, I
draw on three key elements of entrepreneurship: the
building of organizational reputations, the cultivation
of multiple networks, and the pursuit of change
through measured action. Throughout his reform
campaign, Taft’s project was not simply employing the
resources available to him but generating those
resources he needed but did not possess. As a result,
his entrepreneurship entailed not only lobbying but
also quite a bit more—not least framing debate,
guiding innovation, and consolidating immediate
gains into lasting institutional change.
Reputations. As a prominent national political
figure for nearly two decades, Taft brought a set of
reputations with him to the Court. Far from universal,
these conceptions were varied, diverse, and a source of
great controversy.25 His time as president alone offered
contrasting portraits of a would-be reformer, on the
one hand, and a weak and bumbling amateur, on the
other (Arnold 2003; Barber 1985, 150–59). As Chief
Justice, Taft layered new images atop the old, less supplanting his prior reputations than complicating their
caricatures and correcting their distortions. Perhaps
striving to redeem his failed presidency in the eyes of
political elites and the public, perhaps because he had
long yearned to be Chief Justice and simply wanted to
fulfill his duties with honor, Taft developed a personal
reputation as an efficient and effective administrator
who cut printing costs, demanded payment of
required fees from delinquent lawyers, and reorganized his staff to trim waste and better serve his needs
(Mason 1984, 193, 269). Tackling traditionally boring
administrative details “with great relish,” Taft not only
organized the Associate Justices into committees for
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internal business26 but also assigned opinions according to a variety of practical criteria, including age,
health, backlog of cases, and rate of production
(Mason 1984, 193–97, 206–209).27
Taft’s innovations inside the Court not only augmented the formal and informal powers of the office of
the Chief Justice but also gained him a measure of
respect among legislators and fellow judges. The latter
group, knowing that Taft was “plugged-in” to the politics of the capital, often wrote to suggest possible
changes they hoped he would champion (Mason 1984,
122). One judge, desiring a change in one of Taft’s
reforms, wrote glowingly to the Chief Justice of his
confidence that Taft’s “counsel and advice will have
great weight” in Congress.28 And, with some members,
it did. Voting in favor of the 1922 reforms, one congressman remarked of Taft and his fellow justices that,
“it seems to me that those gentlemen are of such high
character that we could without much alarm follow
their advice and suggestion” (Congressional Record
1922, 166). Another replied to Taft’s gratitude for his
support by citing both his “personal regard” for the
Chief Justice and the“value I place upon any suggestion
that you may make.”29 To be sure, not all congressmen
felt such adulation toward Taft, but for those who did,
their trust in the Chief Justice was seemingly an integral
factor in their decision to support his reform efforts.
Even more central to the acquisition of political
legitimacy than Taft’s personal reputation as a competent Chief Justice was the Court’s institutional reputation for filling a valuable niche in the political
system. Despite the fact that the “countermajoritarian
critique” of the 1890s intensified after the turn of the
century, the Court’s ability both to supervise state governments and outlive governing coalitions furnished it
with enough diffuse political support to beat back
even its staunchest opponents (Whittington 2006).
Although these opponents—chiefly Progressives and
the American Federation of Labor—excoriated the
26
Justice Louis Brandeis, who had experience with financial
matters, served on the Accounts Committee while Justice Willis
Van Devanter, the Court’s expert on legal procedure, served on the
Rules Committee.
24
Taft (1916–1917, 11) lamented that the caseload increase had
“swamped a system that was adopted in more primitive times and
was adapted to conditions of a people living in rural rather than
urban communities.”
25
While an editorial in The New York Times (1916) explicitly called
for Woodrow Wilson to place Taft on the Court after the death of
Justice Joseph Lamar, later editorials in Progressive publications
such as The Nation (1921) and The New Republic (1920, 1921)
sharply criticized Taft’s appointment (or prospective appointment) as Chief Justice.
27
Even opinion-writing, if the assignment power could be used to
promote unanimous (or near unanimous) opinions, was seen as a
tool of efficient judicial administration. For his part, Taft tried to
stem the tide of mutiny by dissenting extremely infrequently, even
when he disagreed with the outcome (Danelski 1986; Post 2001,
1283–1284).
28
James F. Smith, Letter of October 19, 1921 to William Howard
Taft, cited in Mason (1984, 122).
29
George S. Graham, Letter of February 20, 1925 to William
Howard Taft, cited in Mason (1984, 123).
the forging of judicial autonomy
lower courts for their unresponsiveness (Murphy
1962b, 48–53; Ross 1994), Taft maintained that the
judiciary’s problems stemmed less from objectionable
decisions than inefficient administration.30 As a result,
he claimed, the necessary remedy was not the curtailment of judicial power but managerial innovation.31
Among other things, he increased the Court’s control
over the responsibilities of the Clerk, demanded
quicker writing of opinions and scheduling of cases,
attempted (albeit unsuccessfully) to shorten the
summer recess, rejected his brethren’s desire to reduce
the pace and rigor of work, and revised the Court’s
internal rules about the logistics of hearing appeals
(Mason 1984, 195). Attempting to make promptness
at the Supreme Court “a model for the courts of the
country” (Starr 1991–92, 964), Taft exhibited “no
patience with judges who did not do their work properly” (Pringle 1939, 992). Consequently, he not only
reduced the period between the filing and hearing of a
suit from 15 months to 11 but also broke records for
the number of cases decided by the Court in his initial
year as Chief Justice (Mason 1984, 195). Thus, by
framing his innovations as efficiency measures
designed both to increase judicial efficacy as well as
preserve the “dignity and influence of the Court”
(Whittington 2006), Taft successfully invoked Progressive era aims in order to sidestep trenchant and vocal
critiques of federal judicial power offered by Progressives themselves.32
Networks. With his lengthy resume in politics, Taft
possessed “an intricate web of vast personal relations”
before he ever donned his Supreme Court robe
(Mason 1984, 121). Upon joining the Court, Taft
exploited these networks to persuade not only
members of Congress and fellow judges33 but also
79
presidents, newspaper editors, and lawyers.34 When
Republicans took back the White House in 1920, Taft
offered Warren Harding extensive advice on the
matter of judicial appointments (Murphy 1961,
1962a). Despite his appointment as Chief Justice, Taft
remained in his advisory role—albeit with mixed
success—during the subsequent presidential administrations of Calvin Coolidge and Herbert Hoover.35
Although Coolidge in particular seemed to tire of
Taft’s meddling, he nonetheless allowed the Chief
Justice to draft a section of his 1923 State of the Union
Address expressing support for increased certiorari
jurisdiction (Hartnett 2000, 1674) and even directly
suggested that Congress pass Taft’s reforms (Mason
1984, 113).
Looking to extend his networks beyond Pennsylvania Avenue, Taft curried favor with the media and
key interest groups during his time as Chief Justice.
Contacting newspaper editors directly, he encouraged
(and received) press support of his proposals (New
York Times 1924a, 1924b, 1925), provided written critiques of his opponents, urged editorials against a proposal to withdraw the Court’s diversity jurisdiction,
and generally utilized (manipulated?) the press to
inform lawmakers and the public about his reforms
and to repel future attacks against them (Mason 1984,
127–29).36 Similarly, Taft spared no effort to enlist the
support of organizations of lawyers (New York Times
1922a, 1922b, 1923c), especially the American Bar
Association (ABA), of which he had served as President for the year following his departure from the
White House and from which he had aggressively
campaigned for the same reforms he would later
secure as Chief Justice. The rise of legal professionalism in the early twentieth century had helped establish
the ABA as a powerful interest group (Hurst 1950,
287–91, 359–67; Sunderland 1953), and the organiza-
30
“Federal Judges doubtless have their faults, but they are not
chiefly responsible for the present defects in the administration of
justice in the Federal Courts” (Taft 1922a, 607).
31
Taft also guarded against moves that he perceived might dilute
the Court’s prestige, including issues relating to judicial salaries,
diplomatic rank, and social protocol at official state functions.
Similarly, as a way of acknowledging the Court’s “public responsibility,” Taft set standards for the attire, behavior, and opinionwriting style of his fellow justices (Mason 1984, 267–271).
32
Needless to say, the judicial reforms of the 1920s had a complicated and uneasy relationship to Progressivism. Although they
were framed in Progressive terms, they were offered by a Progressive apostate (Taft) and resisted by many Progressives in Congress
who disliked the Court’s anti-Progressive jurisprudence.
33
Facing the tremendous challenge of unifying lower court judges
behind reform, Taft sent personal letters to every district judge
asking for suggested reforms in judicial procedure, to every circuit
judge requesting information and advice on any problems with
overcrowded dockets, and to every state supreme court chief
justice proposing to bring all courts of last resort closer together
(Murphy 1962a, 454).
34
Cf. Carpenter (2001, 27), observing that entrepreneurs are best
positioned if they “know both political elites and the grass-roots
constituencies.”
35
From soliciting names of candidates from lawyers, politicians,
and newspapermen to ushering his favored nominees (Pierce
Butler) through the confirmation process to discouraging the
nomination of candidates unsympathetic to his own views (Benjamin Cardozo and Learned Hand), Taft had a greater hand in
selecting both his colleagues and his subordinates than perhaps
any other Chief Justice before or since. Cf. Carpenter (2001, 26–27)
on establishing ideal-typical criteria and drawing candidates from
multiple personnel networks.
36
Cf. Carpenter (2001, 363–364) on the role of the media in the
construction of autonomy.
80
tion proved a crucial ally in Taft’s reform campaign.
Employing a unique strategy to combat opposition to
his expansion of the Court’s certiorari jurisdiction,
Taft convinced the ABA to tell Congress that the bill
was too technical even for lawyers. As a result, ABA
lobbyist Thomas Shelton reasoned, Congress should
defer to the judiciary, pass the bill, and observe its
effects in action. Besides certiorari, Taft also succeeded
in persuading the bar to resist congressional measures
he opposed, such as the withdrawal of diversity jurisdiction and the restriction of judicial discretion in jury
trials (Mason 1984, 129–31), and to support his call
for revising procedural rules (Shelton 1925).
In addition to exploiting his own networks,37 Taft
carefully dispatched his fellow justices to take advantage of their networks. In 1924, instead of testifying
before the Senate Judiciary Committee himself, he
sent Justices George Sutherland (a former ABA president and Senate Judiciary Committee member), James
McReynolds (a Democrat), and Willis Van Devanter
(the Court’s expert on jurisdiction). When an opportunity to purchase a Boston law library presented
itself, Taft brought Justices Oliver Wendell Holmes and
Louis Brandeis—both Massachusetts residents and
Holmes the “circuit justice” for the First Circuit38—
along with him to a House Appropriations subcommittee hearing for symbolic support (Mason 1984,
126–27). In both situations, Taft was astute enough to
realize that his reputation and his networks were not
the only ones carrying political capital, not the only
ones capable of building political legitimacy.
Measured Action. Taft’s active lobbying for his
judicial reforms triggered various reactions, including
strong opposition from those who thought his advocacy of a bill advancing his own power (in front of a
congressional committee no less!) violated norms of
judicial propriety. To some, Taft’s influence with
legislators—calling the chairmen of the House and
Senate Judiciary Committees after the annual Judicial
Conference and requesting authority to devise a plan
to address new problems, for example—seemed presumptuous at best, an outright violation of separation
of powers at worst (Mason 1984, 122–26). Sensitive to
the dangers of negative perception, Taft had Justice
37
Among Taft’s other efforts to establish or exploit networks were
his participation in numerous voluntary organizations, his backchannel involvement in partisan politics (assessing the credentials
of Republican candidates), and his intervention in diplomatic relations (encouraging American membership in the International
Court of Justice) (Mason 1984, 273–286).
38
Each justice is assigned to preside, on behalf of the Court, over
emergency appeals arising from one or more of the nation’s thirteen judicial circuits.
justin crowe
Van Devanter assure Congress that no justice—not
even the Chief Justice—wanted to enter the legislative
field. He downplayed his own role in the reform effort
and minimized his rivalry with the Senate. He portrayed the reforms as a response to real problems
rather than judicial aggrandizement and stressed the
“broadly felt benefits of a more efficient federal bench”
(Buchman 2003, 13). He presented the justices as a
united front and allayed fears that judicial authority
would be wielded arbitrarily.
In addition to each of these moves—ostensibly
taken to preempt opposition to a fortified Court—Taft
demonstrated his willingness to compromise. When
he realized that his proposal for a “flying squadron”
(Taft 1922a, 601) of two new “roving” judges per
circuit (for a total of eighteen “judges at large”) would
fail to gain approval, he endorsed a milder version that
provided additional judges to 21 specific districts
without upsetting local patronage arrangements
(Murphy 1962a, 455–58). Astutely aware that Congress could take away the newfound power to transfer
judges between districts, Taft urged senior circuit
judges to use the power cautiously (Mason 1984, 106).
In general, Taft recognized that reform could be fleeting and aimed to set his innovations on the firmest
possible ground. His ultimate goal was not just more
judges or a lighter workload but an improved and
empowered judiciary; his focus was not on gaining
power in the short-term but on consolidating it for the
long-term.
Toward Judicial Bureaucracy
The sum total of Taft’s reforms was a judiciary—a
lower court hierarchy, a Supreme Court, a Chief
Justiceship—transformed. Though not all of Taft’s
innovations became consistent features of judicial
governance, the three main changes—the reorganization of the federal court system under the Chief
Justice, the establishment of the Judicial Conference,
the radical expansion of certiorari jurisdiction39—
persist today, more than 75 years after Taft left the
Court. If part of entrepreneurship is consolidating the
immediate gains of innovation into significant and
lasting change, then Taft was most certainly an entrepreneur par excellence.
39
The expansion was certainly radical. In 1924, cases within the
Court’s obligatory jurisdiction represented 40% of all filings; by
1930, such cases represented only 15% of all filings (Casper and
Posner 1976, 20).
the forging of judicial autonomy
The genius of Taft’s reforms was that they recognized a central problem—the fact that Congress had
created a hierarchy of courts but not a hierarchy of
judges (Frankfurter and Landis 1928, 218)—and set
out to rectify it. Desiring both centralization and
managerial efficiency, Taft envisioned a judicial hierarchy premised on the notion that the Chief Justice
should be not only the most important judicial officer
in the nation but also the operational director of the
federal judiciary. Upon becoming Chief Justice, Taft is
said to have referred to himself as “the head of the
judicial branch of government” (Murphy 1962a, 453).
Such a position seems uncontroversial today,40 when
we are accustomed to seeing the Chief Justice testify
annually before Congress on the state of the judiciary,41 but it was distinctly peculiar in 1921, when the
Chief Justice was considered little more than the “first
among equals.” With the federal judiciary lacking a
unified structural “body,” it made little sense to consider anyone the titular, let alone functional, “head.” In
order to overcome the perception of the clerical Chief
Justice, Taft needed to overcome the reality of the judiciary as a collection of functionally disparate courts
and geographically dispersed judges. Surmounting
these obstacles required nothing less than the transformation of the third branch into a hierarchical and
centrally managed institution capable of understanding and actively addressing its own needs, faults, and
weaknesses. Of course, given the national ambivalence
toward centralization of government associated with
the “return to normalcy,” such a transformation
needed to be framed in terms that would assuage
rather than exacerbate fears about national consolidation.42 Accordingly, appealing to the Progressive
era romance with the science of organization and
management, Taft emphasized his desire to infuse
“executive principle” (Taft 1921, 454)—practices or
procedures explicitly designed to increase administrative precision and efficiency—into the tasks and governance of the judicial branch.
40
Not least because, with two recent exceptions (Resnik and Ruger
2005; Ruger 2004), the role and powers of the Chief Justice have
been underestimated and understudied by political scientists and
legal academics alike.
41
We might say that this function, begun by Warren Burger and
continued by William Rehnquist and now John Roberts, is a legacy
of Taft’s model of the Chief Justiceship.
42
Cf. Post (2002, 1604), noting that the Taft Court’s unique conception of itself as “transcending the dichotomy between federal
and state spheres of sovereignty” and subsequent “failure to conceptualize judicial centralization as an issue of federalism” resulted
in jurisprudential decisions that aggressively expanded federal
judicial power over economic regulation.
81
By granting Taft the authority to transfer judges
from overstaffed districts in one circuit to understaffed districts in another circuit, the 1922 act allowed
the Chief Justice to place “the judges of the country
where they can do the most good” (Taft 1922b, 35).
Such a turn to “executive management” of judges not
only meant that the “whole Federal judicial force of
the country would be strategically employed” (Taft
1916–17, 17) but also marked the beginning of Taft’s
seemingly uphill battle to shift the allegiance of federal
judges from their states to the nation. As the new
judicial allegiance—aided in large part by the collegiality of the Judicial Conference—took hold, lower
court judges increasingly looked to the Chief Justice
for relief from crowded dockets and for general guidance in conducting judicial business. In response,
Taft’s congressional opponents voiced fears about
consolidating the power of the entire judicial system in
the Chief Justice. To do so, they claimed, risked converting a government of laws into a government of
men—or, in this case, a government of one man
(Mason 1984, 101–106). While Taft was correct in
denying that he was as powerful as his model judge,
the Lord Chancellor of England (New York Times
1922b), it is certainly true that he was more
powerful—as a politician, as an administrator, and
certainly as a policymaker—than most of his predecessors had been.
By authorizing the annual meeting of senior
circuit judges that soon became known as the Judicial
Conference, the 1922 act not only offered the Chief
Justice a position from which to promote and
comment on legislation related to the federal judiciary
but also made him the unequivocal “head of the
Federal judicial system” (Taft 1916–17, 14). Viewing
the Conference as a means to achieve solidarity, Taft
was convinced that, if individual judges from across
the nation could meet (a nearly unprecedented event),
exchange information, and garner advice from those
facing similar problems, then the disparate judges of
America would be well on their way to comprising a
unitary judicial “team” (New York Times 1922b).43
Emphasizing “the ordinary business principles in
43
Calls for “teamwork” (one of Taft’s favorite slogans as Chief
Justice) and the metaphorical conception of the judiciary as a
“team” were crucial to the development of a shared judicial allegiance. In turn, it was precisely this allegiance that convinced lower
court judges to surrender a substantial measure of their individual
autonomy in exchange for enhanced institutional autonomy vis-àvis the other branches of government. Cf. Carpenter (2001, 23–25)
on the role of entrepreneurs in the construction, articulation, and
rhetorical selling of “bureaucratic culture”—“the metaphorical
complex of language and symbols which defines the selfunderstanding of an agency.”
82
successful executive work” (Taft 1916–17, 16), Taft
used the Conference to require judges to file reports
indicating the business completed and that remaining
on the docket (Taft 1921, 454; Taft 1922a, 601; Taft
1922b, 34), collect statistics on judicial workload and
productivity (Taft 1916–17, 16), and generally supervise judicial administration throughout the nation
(New York Times 1923a, 1923b, 1924c). With the
guiding hand of Taft and under the direction of the
initial Conferences, therefore, the judiciary became a
piece of “quasi-executive” machinery—“reforged with
a capacity for self-study, criticism, and reform” (Starr
1991–92, 966). Judges were, as Taft had long wished
they would be, “independent in their judgments, but
. . . subject to some executive direction as to the use of
their services” (Taft 1922b, 35).
By limiting the automatic right of appeal to the
Supreme Court and expanding the types of cases that
could be heard only with the justices’ assent, the Judiciary Act of 1925 gave the Court near-complete
control over its docket for the first time in history.44
Offering an alternative much preferred to the possibility of restricting jurisdiction, the shift toward certiorari review was considered “the best and safest
method” (Taft 1922a, 603) for simultaneously easing
the Court’s workload and protecting its authority. In
fact, since it solved the problem of increasing caseload
pressure by decreasing the number of cases the Court
was required to hear rather than the number it was
permitted to hear (Taft 1922b, 35), the shift actually
enhanced the authority of the Court by dramatically
increasing its discretion to pick and choose cases of
interest.45 With such a complete and thorough revision
of its jurisdiction (Taft 1922a, 603; Taft 1922b, 35; Taft
1925–26, 12), the Court was finally able to “exercise
absolute and arbitrary discretion with respect to all
business but constitutional business” (Taft 1916–17,
18).46 The fact that this revision was prompted and
undertaken by the justices themselves only further
established the Court’s ability to participate in policymaking that substantially affected it.
44
The docket control is only “near-complete” because the Act did
preserve mandatory jurisdiction in a few select types of cases—at
least until 1988, when the right of appeal to the Court was virtually
eliminated (102 Stat. 662).
justin crowe
The judiciary Taft left in 1930 was thoroughly
unlike the one he had joined nine years earlier.47 The
centralization of administrative authority, establishment of the Judicial Conference, and expansion of
certiorari jurisdiction not only empowered the office
of the Chief Justice but also catalyzed the emergence of
a self-governing judiciary. By creating “explicit institutional structures designed to facilitate reform” (Fish
1975, 123–24) and embedding the spirit of executive
principle within those structures, Taft was able to
entrench both structural hierarchy and managerial
efficiency within the judicial branch. Moreover, since
the structures created were judicial structures—
staffed, operated, and evaluated by Taft and his judicial
teammates—they simultaneously buttressed judicial
autonomy and implanted elements of judicial bureaucracy. After more than a century of being excluded
from the politics of policymaking for their own institution, judges had finally earned the authority to build
the judiciary.
Building the Judiciary
As a result of dynamic and sustained political entrepreneurship, William Howard Taft’s lifelong campaign
to reform the judiciary eventually yielded dividends.
Interestingly, his earlier reform efforts as president did
not. Indeed, the contrast between Taft’s unqualified
success in achieving judicial reform as Chief Justice
and his dismal failure in achieving either tariff or
administrative reform as president could not be more
striking. In tariff reform, Taft was a clumsy president
lacking political awareness and prone to misuse of
strategic resources (Arnold 2003). Attempting to
reform civil administration, the army, and business
regulation, he was simultaneously burdened by the
commitments of Theodore Roosevelt and paralyzed
by the fear that any action he might take would alienate some faction of his party (Skowronek 1982; Skowronek 1997, 252–59). The result was that each of Taft’s
attempts at reform while president was defined largely
by “confrontation” with Congress (Skowronek 1982).
The fact that he approached judicial reform in a different manner—more measured, more strategic, and
with more external support—suggests a process of
political learning from his presidential struggles. More
45
Analyses of agenda-setting and the Court’s certiorari process
have further illuminated the importance of this development
(Pacelle 1991; Perry 1991).
46
Despite Taft’s assurances to the contrary, the Court immediately
exercised such discretion with regard to “constitutional business”
as well, routinely declining to hear cases raising constitutional
issues.
47
Had Taft lived a few more years he would have witnessed a
judiciary transformed even further by two other initiatives he had
devised and championed: the creation of the Federal Rules of Civil
Procedure and the construction of an independent building for the
Supreme Court.
the forging of judicial autonomy
cognizant of his own strengths and weaknesses as well
as the surrounding political environment, Taft worked
tirelessly to develop personal and institutional reputations, cultivate networks of interest groups and the
media, and act in measured ways to avoid alienating
others. Together, these actions instigated the two-step
process described in this article: first, the construction
of political legitimacy necessary for the forging of
judicial autonomy, which facilitated the passage of
Taft’s reforms; and, second, with the consolidation
of those reforms, the introduction of judicial bureaucracy, which in turn further enhanced judicial
autonomy.
At the end of the day, how do we really know that
it is Taft’s entrepreneurship and not some other
factor—the shift to unified Republican government
with the election of Warren Harding in 1920, to cite
one possibility—that is responsible for the creation of
new programs, the passing of laws that would not
otherwise have been considered by Congress, and an
increase in both jurisdiction and discretionary administration? One way to probe such a question is to consider a simple counterfactual: in the absence of Taft,
would such changes still have occurred? Since caseload
pressure was mounting, some sort of reform was
probably inevitable at some point. But, given the
extent of Taft’s entrepreneurship, it undoubtedly
would have taken a substantially different shape: less
empowering of the Chief Justice, without any provision at all for a Judicial Conference, and—if the preTaft reforms of 1911 (38 Stat. 790) and 1913 (39 Stat.
726) are any indication—more piecemeal in jurisdictional housecleaning. In other words, it would hardly
have been the institutionally transformative reform
Taft delivered. After all, with both the creation of the
Conference and the shift to certiorari jurisdiction, Taft
conceived definite programs and launched them—
from drafting legislation to influencing legislators to
testifying at congressional hearings (New York Times
1921b, 1921c, 1921d, 1922b); accordingly, the prospects for replication without his entrepreneurship
seem dim.
Just as Taft’s entrepreneurship was pivotal, so too
was it unique. Though certainly similar to Comstock
and Pinchot, Taft followed no established script for
transforming a political institution. In fact, Taft’s
precise brand of entrepreneurship suggests a number
of possible extensions and modifications to Carpenter’s theory of how and why autonomy develops. First,
and perhaps most crucially, Taft’s quest for judicial
autonomy demonstrates that there is more variance
within the phenomenon of autonomy—that there are
more types and gradations of autonomy—than Car-
83
penter’s seemingly dichotomous exposition of the
concept allows. The fact that the pre-Taft judiciary
possessed decisional but not organizational or administrative autonomy implies that there are potentially
fruitful lines of inquiry about autonomy other than
simply whether an institution does or does not possess
it. We might ask, for instance, what kind of autonomy
a particular institution has developed or to what
degree an institution has attained a specific type of
autonomy. Such questions show that autonomy exists
not simply as a matter of black and white but, rather,
as a political phenomenon with multiple shades of
gray. Similarly, given that Taft focused his attention on
refining organizational capacity and constructing
political legitimacy without a corresponding drive to
increase political differentiation, we see that Carpenter’s three central features of autonomy may develop
temporally separate from one another. Differentiation,
capacity, and legitimacy, it seems, need not be a
“package deal.”
Second, though undeniably crucial in the forging
of bureaucratic autonomy within the Post Office and
the USDA, officials at the “mezzo-level” (Carpenter
2001, 18–23) are not the only actors capable of
autonomy-forging entrepreneurship. As Chief Justice,
Taft was certainly positioned differently than Carpenter’s bureau and division chiefs. In theory, his formal
position more closely resembled department executives and cabinet secretaries; in practice, however, he
did not let a magisterial conception of his office
confine him to a purely ceremonial role. Through frequent contact with fellow judges about the business of
the federal courts, on the one hand, and extensive
interaction with politicians, interest groups, and the
media, on the other, Taft not only acquired the intimate knowledge needed to innovate, experiment, and
engage in the process of political learning but also
organized coalitions that would support his initiatives.
In each case, Taft, though far from a mezzo-level official, acted in the spirit of one. Furthermore, his ability
to fuse the strengths of mezzo-level and executive-level
positions into a unique conception of the Chief Justiceship offered unique opportunities. Combining the
two roles gave Taft the ability, for instance, to articulate
an organizational metaphor (like an executive) and to
implement it (like a mezzo-level official) simultaneously (Carpenter 2001, 23–25). The lesson here is
that officials at the top of an organizational chart, in
addition to those in the middle, can be effective advocates for autonomy as well—but only to the extent that
they are committed to the mission and success of the
particular institution they lead. In this regard, it is
crucial that the Chief Justice is not, like Cabinet sec-
84
retaries, a political appointee who holds his position
only at the pleasure of the president. Whereas political
appointees rarely know much, if anything, about the
substantive work of their agencies, Taft was intimately
familiar with the daily functioning of the judiciary;
whereas political appointees are seldom invested in the
long-term vitality of their agencies, Taft was dedicated
to keeping the judiciary—an institution he had long
yearned to lead—sufficiently strong and independent
to discharge its constitutional functions.
Third, institutional reputations are not the only
ones relevant to the construction of political legitimacy; personal or individual reputations can be equally
instrumental. In Taft’s case, it is not only the Court’s
reputation as a much-needed and well-functioning
institution that begins to build legitimacy among
members of Congress and judges alike but also the
Chief Justice’s reputation as a capable administrator of
that institution. Fourth, and finally, networks can be
viable sources of support and persuasion even if they
are secondary—that is, even if they are networks not of
the entrepreneur himself but of someone to whom the
entrepreneur is networked. We see this in Taft’s deft
utilization of his brethren’s professional history, partisan affiliation, legal expertise, and geographic background in order to placate opposition and secure the
approval necessary for the passage of desired measures.
As the importance of these strategic maneuvers
makes clear, the transformation of the institutional
judiciary did not occur without controversy, without
contestation, or without compromise; rather, it
emerged from the cauldron of ordinary politics.
Indeed, if there is a broader lesson from Taft’s story, it
is about the politics of institutional development—
more specifically, about the place of judicial capacity
in narratives of institutional development. The judiciary, we see from Taft’s successful reform campaign, is
simultaneously a participant in the struggle for political power as well as an object in it, its capacity simultaneously the agent and outcome of institutional
change. The influence of judges in institutional development is neither trumped by that of Congress nor
restricted to interpretive activity alone. Judicial capacity, then, grows from more than simply constitutional
decisions or the exercise of judicial review; it also
derives from interaction with political elites, from
empowering legislation, and from public, media, and
interest-group support. The judiciary does, of course,
act upon politics, but it is equally acted upon by politics; it is created by politics and, thus, an object of it.
Phrased more technically, we might say that judicial
capacity is not simply an independent variable but a
dependent one as well.
justin crowe
Framing this insight as a question, we might ask
how the process of building the American judiciary
unfolded. My concern here is with the creation, consolidation, expansion, and reduction of the structural
and institutional capacities needed to respond to and
intervene in the political environment.48 Such a focus
encompasses several features of the institutional judiciary, including, but not limited to, standing, jurisdiction, expansion or contraction of courts, judicial
discretion, organizational structure, procedural rules,
staffing, budgets, and physical space. Since these structural features allow courts to hear cases, craft and
modify legal rules, and render authoritative judgments, they make it possible for judges to settle political, legal, and policy disputes that have concrete effects
on individuals, corporations, government, and the
nation as a whole. Given the role of the judiciary in,
among other things, spurring the growth of an industrial economy (Bensel 2003, 289–354), constituting
American citizenship (Smith 1997), and privileging
certain rights and liberties at the expense of others
(Kersch 2004), understanding the historical development of the institution has obvious substantive
import.
Yet, despite such importance, scholars of American political development do not often speak of the
judiciary as an institution that was, in any meaningful
sense, built. At present, we have developmental
accounts of the bureaucracy and the administrative
state (Carpenter 2001; Skowronek 1982), Congress
(Schickler 2001; Swift 1996; Zelizer 2004), and the
presidency (Moe 1985; Skowronek 1997) but know
relatively little about the historical processes contributing to the building of the federal judiciary (or even
just the Supreme Court) as an independent and
autonomous institution of governance in the American political system.49 Part of the problem is that, with
a few exceptions (Barrow, Zuk, and Gryski 1996;
Cameron 2005; Fish 1973; Frymer 2003; Gillman
2002; Johnson 2004; McGuire 2004; Orren 1976),
political scientists ostensibly think of courts as institutionally thin, as lacking the complex institutional
features—actors, structures, and rules—that make
other political institutions worth studying. While the
48
I am influenced here by Skowronek’s (1982, 10) definition of
“state building” as the process by which “government officials
seeking to maintain power and legitimacy try to mold institutional
capacities in response to an ever-changing environment.”
Cameron (2005, 189) has a similar definition of “judicial power.”
49
Two attempts that, if read in conjunction, might be useful are
McCloskey (2000) and Posner (1996). There are also a number of
studies focusing on similar themes in specific eras (Holt 1989;
Kutler 1968; Wiecek 1969).
the forging of judicial autonomy
legislative branch has a hierarchical system of committees and subcommittees and the executive branch has
a vast bureaucracy comprising layers of political
appointees and civil servants, the judicial branch has
only some courts, some judges, and some clerks—or
so the lack of attention to the institutional context of
the judiciary would have us believe.50
As the Taft case demonstrates, however, this view
of the judiciary as simply an Article III abstraction
that does not itself develop over time is misguided.
As an institution, the federal judiciary is at least as
complex—and its historical development at least as
dynamic—as Congress, the presidency, or the federal
bureaucracy. Indeed, looking back at the indeterminacy of Article III51 and the politics of the early republic, we see that the development of an active and
interventionist third branch of government was far
from a foregone conclusion. The American judiciary,
that is to say, was not born independent, autonomous,
and powerful; rather, it had to become so, largely
through a continuous process that was both politically
determined and politically consequential.52 The story
of judicial institution building, in other words, is not a
single moment of revelation but a series of battles—of
which the Taft episode is a single, albeit critical,
one—in Congress and courts over the politics of institutional development. It is the story of how the judiciary, long outlined in pencil rather than pen, was,
perhaps more so than the legislature or the executive,
built—piece by piece, from the ground up, as part and
parcel of American political development.
50
Although largely ignored by political scientists, the institutional
context of the judiciary has received attention from legal academics. Much of this literature, however, focuses on fairly specific legal
rules and narrow tracts of judicial administration rather than the
causes and consequences of structural and institutional innovation within the judicial branch. Notable exceptions include the
work of Burbank (1982, 1999, 2004), Geyh (2002, 2006), Hartnett
(2000), Resnik (1982, 2000, 2003), Rubin (2002, 2005), Ruger
(2004), and Subrin (1987).
51
The “judicial article” does little more than indicate that there is a
“judicial Power of the United States” and that such power is “vested
in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.” It creates a Supreme
Court but gives no indication of how many individuals will
compose it. It outlines the types of cases to which the judicial
power “shall extend” but qualifies even those grants of jurisdiction
“with such Exceptions, and under such Regulations as the Congress shall make.” In general, it declares that a judicial power exists
but offers scant guidance about the precise nature, contour, or
extent of that power.
52
I borrow this sentence formulation from Wood: “Americans were
not born free and democratic in any modern sense; they became
so—and largely as a consequence of the American revolution”
(1991, ix).
85
Acknowledgments
I thank Doug Arnold, Peri Arnold, Beau Breslin, Steve
Burbank, Michael Cutrone, Doug Edlin, Chris Eisgruber, Megan Francis, Paul Frymer, Fred Greenstein, Ed
Hartnett, Gary Jacobsohn, Ken Kersch, Dave Lewis,
Richard Morgan, Robert Post, Christen Romanick, Ted
Ruger, Kim Scheppele, Jim Stoner, Rick Valelly, Keith
Whittington, Emily Zackin, seminar participants at
Princeton, and three anonymous reviewers for helpful
suggestions, conversations, and feedback. An earlier
version of this article was presented at the 2006 annual
meeting of the New England Political Science Association, Portsmouth, NH.
Manuscript submitted 5 December 2005
Manuscript accepted for publication 30 June 2006
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Justin Crowe is a Ph.D. Candidate at Department
of Politics, Princeton University, Princeton, NJ 08540.